‘A Society That Gets Along’

Judge Michael Scott says his landmark Arlene’s Flowers case boils down to respecting each other despite differences

Published in 2018 Washington Super Lawyers magazine

By Allison Peryea on June 18, 2018


When Robert Ingersoll visited his regular florist’s shop in Richland in March 2013 to order flowers for his wedding to longtime partner Curt Freed, he was stunned when owner Barronelle Stutzman, citing religious beliefs, turned him down. 

Same-sex marriage had been legalized in the state three months earlier. Stutzman’s action gave rise to a lawsuit that garnered national attention and tested the state’s anti-discrimination and consumer protection laws. Four years later, the state Supreme Court would rule in Ingersoll and Freed’s favor. In between came a lot of legal legwork.

Prompted by friends after posting about the incident online, the pair reached out to the ACLU, which contacted then-litigator Michael R. Scott at Hillis Clark Martin & Peterson in Seattle. For Scott and his HCMP team—Jake Ewart, Amit Ranade and Michael Edwards—providing the pro bono representation was “a cutting-edge application of our longstanding laws against discrimination in the context of the new rights and protections against discrimination for LGBTQ people.” 

The case, consolidated with a suit against Arlene’s by the state Attorney General’s Office, was based on the Consumer Protection Act and the Washington State Law Against Discrimination, amended in 2006 to cover sexual orientation and gender identity. 

The matter is of personal importance to Scott, who came out in 2003. Scott was a board member of the Pride Foundation until 2015, when he was appointed to the Bainbridge Island City Council, and later elected to a full term. Scott worked previously with the ACLU on a 2010 lawsuit involving an African-American student in Aberdeen who was harassed over his race and perceived sexual orientation. 

Scott’s 35-year practice has focused on complex commercial disputes, including securities litigation, antitrust and patent infringement. But ACLU-Washington legal director Emily Chiang says he was the perfect choice for Arlene’s Flowers. “He understood the historical context of this litigation and what the implications would be for a ruling the other way,” she says. “He was in this from the get-go.”

Adds Deputy Attorney General Todd Bowers, who handled the trial-level portion of the AG’s action, “He understands not just the letter of the law but the informal rules of the road.” 

Scott had to present the case thoughtfully: “I figured out how to explain that [the law] promotes access to goods and services—but it also promotes the dignity of every human being. The indignity of being turned away because of who you are, whether it is because you are a woman or a gay man, or a black person or a Muslim, causes real harm.”

When people struggled with the duty to provide services despite religious objections, Scott drew a comparison to the discriminations of the past: “People have no trouble at all saying, ‘Of course, a shop shouldn’t be permitted to turn away an interracial couple,’ and then a light goes off that this is the same premise.”

Another hurdle was the evolving nature of the defense. Initially, it focused on freedom of religion, later, more on artistic expression.

Scott’s team said speech merits protection, but that the service Stutzman provides is not speech. “The flowers that she sells to any couple do not send the signal to the family and friends gathered for that marriage that she approves of that marriage,” says Scott. 

The couple prevailed on summary judgment. Dozens of demonstrators supported Stutzman, many holding large signs. 

Stutzman is represented by right-wing national organization Alliance Defending Freedom, which Scott notes has “grown enormously” since gay-rights cases have come to the forefront. He says Stutzman has served as “a sort of a poster child” to raise funds.

Scott and Attorney General Bob Ferguson argued the case before the state Supreme Court in November 2016. Scott and Ferguson went through two full moot courts together. “I’ve never been as prepared for an oral argument in my life,” Scott says. “It was enormously healing for me to be able to stand up for fundamental values and rights after an election that threatened [them]. I felt empowered.”

Stutzman petitioned the U.S. Supreme Court for review, which had not been granted by publication time. Scott’s team asked the court to wait until it rules in a case in which a baker refused to provide a cake for a same-sex wedding based on the same arguments as Stutzman’s. “It is a very divided court, and Kennedy will be the swing justice,” says Scott.”

Ingersoll and Freed’s legal teams remained respectful of Stutzman’s religious beliefs, but Scott—an ordained Eucharistic minister in the Episcopalian church—personally has struggled with them. “As a person of faith, I would think, regardless of the law, that you would serve somebody,” he says. 

He and Ewart moved on this year to another high-profile pro bono suit, against the Department of Defense and President Trump. They filed an amicus brief on behalf of transgender service members and transgender individuals who want to serve in the U.S. military. 

“Cases related to equality help make people aware of the different ways in which we don’t have equality in our society, whether it is being turned down by a florist, or denied a job or advancement,” says Scott. “Even if you aren’t in a protected category yet—and everyone will eventually be in one; we are all aging—they make us the kind of society we need to be, which is a society that gets along despite differences, and can act respectfully in the public realm, whether that’s in the marketplace or the town square.”



Advice From Judge Michael Scott In Case You’re In His Courtroom

In April, Michael Scott got a new job: King County Superior Court judge. Before he was sworn in, we asked him to pass along some tips for lawyers who end up in his court:

> Practice civility—it’s never effective advocacy to belittle the opposing lawyer or party.

> Make sure your arguments are solidly grounded on the factual record and the law—don’t risk losing the judge’s trust.

> Be organized, clear and succinct in your argument—get to the point!

> Be thoroughly prepared, and be yourself—there’s no single style of effective advocacy.

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